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HomeMy WebLinkAboutCDC/2008-26 . 1 RESOLUTION NO. CDC/2008-26 2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE AMENDMENT NO.3 TO THE DECEMBER 6, 2004 DISPOSITION AND DEVELOPMENT AGREEMENT, AS AMENDED, BETWEEN THE AGENCY AND WATERMAN HOLDINGS, LLC (4TH STREET AND WATERMAN AVENUE - APN: 0135-191-11) (CENTRAL CITY EAST REDEVELOPMENT PROJECT AREA) 3 4 5 6 7 8 WHEREAS, the Community Development Commission of the City of San Bernardino (the 9 "Commission") is the governing board of the Redevelopment Agency of the City of San Bernardino 10 (the "Agency"); and 11 WHEREAS, the Agency owns property located at the southwest corner of 4th Street and 12 Waterman Avenue within the Central City East Redevelopment Project Area and is unimproved; 13 and 14 15 WHEREAS, on December 6, 2004, the Commission adopted Resolution No. CDC/2004-49 approving the sale of certain real property (APN: 0135-191-11) (the "Agency Property") by the 16 Agency to Waterman Holdings, LLC (the "Developer"), and authorizing the Agency Executive 17 Director to execute the 2004 Disposition and Development Agreement (the "DDA") between the 18 Agency and the Developer; and 19 20 WHEREAS, on June 20, 2005, the Commission adopted Resolution No. CDC/2005-l9 21 approving and authorizing the Executive Director of the Agency to execute Amendment No.1 to the 22 DDA between the Agency and the Developer; and 23 WHEREAS, Amendment No. 1 to the DDA caused Phase I and Phase II of the Project to 24 exchange locations for each such Phase; and 25 WHEREAS, on June 19, 2006, the Commission adopted Resolution No. CDC/2006-20 26 approving and authorizing the Executive Director of the Agency to execute Amendment No.2 to the 27 DDA between the Agency and the Developer; and 28 1 P:\Agendas\Resolutions\Resolutions\2008\07-21-08 Waterman Holdings, LLC - Amendment No.3 CDC Reso.doc CDC/2008-26 1 WHEREAS, Amendment No.2 to the DDA eliminated the previously proposed Phase I and 2 Phase II of the Project and was replaced with a single phase Project consisting of the construction of 3 an approximately 48,000 square foot, two-story building along with the appropriate and necessary 4 improvements and landscaping as well as establishing a reimbursement schedule wherein the 5 Agency would pledge to the Developer an amount equal to 60% of the 1 % of new property taxes 6 generated by the Project for a period of ten (10) years; and 7 WHEREAS, after Amendment No. 2 was approved by the Commission, the City of San 8 Bernardino (the "City") placed additional requirements on the Developer wherein the Developer is 9 now required to make certain off-site improvements to 4th Street and Waterman Avenue (the "Off- 10 Site Improvements") that will cost approximately $399,500; and 11 WHEREAS, the addition of the Off-Site Improvements required by the City was not 12 13 14 15 foreseen by the Developer nor budgeted as part of the reimbursement schedule approved in Amendment 1'10. 2; and WHEREAS, Amendment No. 3 to the DDA will allow the Agency to reimburse the 16 Developer, from the Agency Property sale proceeds, an amount not to exceed the lesser of the actual 17 cost paid for the Off-Site Improvements or $399,500 utilizing prevailing wage rates; and 18 WHEREAS, this payment will be made to the Developer thirty (30) days following the 19 completion of the Project as evidenced by a Certificate of Occupancy issued by the City and upon 20 submission/validation by the Agency of the actual costs paid for the Off-Site Improvements; and 21 WHEREAS, it is appropriate for the Commission to approve Amendment No. 3 (the 22 "Amendment") to the DDA between the Agency and the Developer in this Resolution. 23 24 25 26 27 28 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO DOES HEREBY RESOL VB, DETERMINE AND ORDER, AS FOLLOWS: Section 1. The Commission hereby approves the attached Amendment in the form presented at the meeting at which this Resolution is adopted. The Interim Executive Director of the Agency is hereby authorized and directed to execute the Amendment on behalf of the Agency, together 2 P:\Agendas\Resolutions\ResoJutionsl2008\07-21-08 Waterman Holdings, LLC. Amendment No. 3 CDC Reso,doc CDC/2008-26 1 with such technical and non-material conforming changes as may be recommended by Agency This Resolution shall take effect from and after its date of adoption by this 3 P:\Agendas\ResoJutions\Resolutions\2008\07.2I-08 Waterman Holdings, LLC - Amendment No.3 CDC Reso.ooc CDC/2008-26 1 2 3 4 5 6 7 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE AMENDMENT NO.3 TO THE DECEMBER 6, 2004 DISPOSITION AND DEVELOPMENT AGREEMENT, AS AMENDED, BETWEEN THE AGENCY AND WATERMAN HOLDINGS, LLC (4TH STREET AND WATERMAN AVENUE - APN: 0135-191-11) (CENTRAL CITY EAST REDEVELOPMENT PROJECT AREA) I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community 8 Development Commission of the City of San Bernardino at a jnin~ TPg,''''T meeting 9 thereof held on the 21st , 10 Commission Members: 11 ESTRADA 12 BAXTER 13 BRINKER 14 DERRY 15 KELLEY 16 JOHNSON 17 MCCAMMACK 18 day of July Aves x , 2008, by the following vote to wit: Navs Abstain Absent x ---.lL -JL X x ---.lL ~. Secretary 19 20 The foregoing Resolution is hereby approved this d3112.. day of July ,2008. 21 22 23 24 ~r ~~ Patri . Morris, C . e son unity Development Commission of the City of San Bernardino 25 Approved as to Form: 26 f- 27 By: \ ~{t+ll 28 4 P:\AgeDdas\Resolutions\Resolutions\2008\07.n.08 Waterman Holdings, LLC. Amendmem No.3 CDC Reso.doc CDC/2008-26 AMENDMENT NO.3 TO THE 2004 DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND WATERMAN HOLDINGS, LLC (4tb Street and Waterman Avenue Property) This AMENDMENT NO.3 (the "Third Amendment") is dated as of July 21, 2008, by and between the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the "Agency"), and Waterman Holdings, LLC, a California limited liability company (the "Buyer" or "Developer"), and is an amendment to that certain 2004 Disposition and Development Agreement by and between the Agency and the Developer, dated as of December 6, 2004, for the sale and purchase of certain Agency owned property located at the southwest corner of 4th Street and Waterman Avenue (the "Agency Property") within the City of San Bernardino (the "City") and within the Central City East Redevelopment Project Area of the Agency (the "DDA" or "Agreement"), as amended by that certain Amendment No. 1 to the DDA, dated June 20, 2005 (the "First Amendment"), and as amended by that certain Amendment No.2, dated June 16,2006 (the "Second Amendment"), by and between the Agency and the Buyer, and is entered into in light of the facts set forth in the following Recital Paragraphs. RECITALS A. The Agency and the Buyer executed the DDA on December 6, 2004, wherein the Buyer would acquire land (APN: 0135-191-11) that the Agency owned at the southwest corner of 4th Street and Waterman Avenue (the "Agency Property") in the City of San Bernardino (the "City"). The Agency and the Buyer executed the First Amendment to the DDA on June 20, 2005. The First Amendment modified the Agreement, to provide, without limitation, for the transposition of the Phase I project and the Phase II project. The Agency and the Buyer executed the Second Amendment to the DDA on June 19,2006. The Second Amendment modified the Agreement, to provide for the elimination of the Phase I and Phase II projects and was replaced by a single phase, two-story building of approximately 48,000 square feet of floor space including the necessary and appropriate on-site improvements and landscaping (the "Project"). Additionally, the Second Amendment established a reimbursement schedule to the Developer. 1 P:\Apndaa\Agenda Attacluncnts\A8fmts-Amend 2008\07.21..08 Waterman Holdings, llC - Amendment No_ 3.doc CDC/2008-26 B. Under the terms of the Second Amendment, the Developer will purchase the Agency Property for $512,424, which is equal to the fair market value of the Agency Property based upon the final surveyed square footage. Escrow has been opened under the terms of the original DDA and the Developer has deposited the sum of $20,000 into escrow and the balance of $492,424 will be paid upon the closing of the escrow. Per the Second Amendment, the Agency will pledge to the Developer from general Agency revenues under a Promissory Note an amount equal to 60% of the 1% new tax revenues generated by the proposed Project (estimated development cost is $6 million) for a period often (10) years. As per the original DDA, the 60% pledge was authorized by the Commission in an effort to offset or compensate the Developer for the below market rate ten (IO)-year lease with the County of San Bernardino. The Agency payment obligation will commence upon presentation of a cancelled check by the Developer and as of the fiscal year, following completion of the Project by the Developer and said payment will be paid after each December lOth and April 1 Oth tax payment. .' C. After the approval and execution of the Second Amendment, the City added additional requirements to the Project by requiring the DeveloJ;>er to construct certain off-site improvements including new curbs, cutters, sidewalks along 4 Street and Waterman Avenue and street repair/resurfacing on 4th Street along the front of the Project (the "Off-Site Improvements"). The Developer has estimated that this will increase the Project budget by approximately $399,500. Under the Second Amendment, the Agency had pledged certain reimbursements to the Developer for a period of ten (10) years. However, this reimbursement calculation did not include the additional cost for the required Off-Site Improvements. D. This Third Amendment would allow the Agency to reimburse to the Developer an amount not to exceed the lesser of the actual cost paid for the Off-Site Improvements or $399,500 utilizing prevailing wage rates. This reimbursement will be paid from the sales proceeds of the Agency Property thirty (30) days following the completion of the Project, as evidenced by a Certificate of Occupancy issued by the City and upon submission/validation by the Agency of the actual costs paid for the Off-Site Improvements. All other terms and conditions of the DDA, as amended by the First Amendment and the Second Amendment, would remain unchanged. E. The Agency and the Buyer desire to approve and execute this Third Amendment to the DDA upon the terms, covenants and conditions as set forth herein. NOW, THEREFORE, THE AGENCY AND THE BUYER DO HEREBY AGREE AS FOLLOWS: 1. Under Article III of the DDA, a new section shall be added as follows: Section 3.11. Reimbursement of Off-Site Imorovements. This reimbursement will be made to the Developer thirty (30) days following the completion of the Project as evidenced by a Certificate of Occupancy issued by the City and verification that the Off-Site Improvements 2 P:\Agendas\Agenda Att.aclunents\Agnnts-Amend 2008\07-21-08 Waterman Holdings, LLC - Amendment No. 3.doe CDC/2008-26 ("Off-Site Improvements" as defmed herein shall include the construction of certain off-site improvements including new curbs, cutters, sidewalks along 4th Street and Waterman Avenue and street repair/resurfacing on 4th Street along the front of the Project) have been constructed by the Developer and accepted by the City. The Developer will provide to the Agency a cost breakdown of the actual costs paid for the Off-Site Improvements. Included with the cost breakdown shall be supporting documentation including, but not limited to, invoices, material bills, canceled checks, certification of payment of prevailing wages, releases from all contractors and subcontractors and any other documentation the Agency deems necessary in order to validate the actual costs for the Off-Site Improvements. The reimbursement to the Developer would not exceed the lesser of the actual cost paid for the Off-Site Improvements or $399,500 utilizing prevailing wage rates. 2. Lel!al Effect. The DDA, the First Amendment and the Second Amendment shall only be amended to the extent set forth herein. All other terms, covenants and/or conditions of the DDA, the First Amendment and the Second Amendment, unless specifically amended or modified by the terms, covenants and/or conditions of this Third Amendment, shall remain unmodified and in full force and effect. In the event of any inconsistency, contraction and/or ambiguity between the terms, covenants and conditions of this Third Amendment, and the DDA and/or the First Amendment and/or the Second Amendment, the inconsistency, contraction and/or ambiguity shall be resolved in favor of the terms, covenants and conditions set forth in this Third Amendment. 3. Defined Terms. Terms not otherwise defined or redefined in this Third Amendment shall have the meanings provided for in the DDA. 4. Effective Date. This Third Amendment shall take effect from and after the date of final approval hereof by the governing body of the Agency at a duly held public meeting and after the execution of this Third Amendment by the Agency and the Buyer. //1 //1 //1 //1 //1 //1 1// 1// 1// //1 //1 1// 3 P:\Agendas\Agenda Attachment!l\Agrmts-Amend 2008\07.21-08 Waterman Holdings, LLC - Amendment No. 3.doc .. ~ CDC/2008-26 IN WITNESS WHEREOF, the parties have signed this Amendment as of the date first set forth above. AGENCY Date: ~C~Dt' Redevelopment Agency of the City of San :-~W~liti' Emil A. "'=110. IDre """",, D"""" Approved as to Form and Legal Content: /' ~.I~ By: \ 7 Agency uns DEVELOPER Waterman Hol . a . ornia limite Date: T /3/ /0 'ir 4 P:\Agendu\Agenda Attac:hmenu\Agrmts-Amend 2008\07-21-08 Waterman Holdings, LLC - Amendment No. 3.doc